The Days of Our Ridazz.

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Except as stated in Section 240, it is a condition of each party's duties to render performances to be exchanged under an exchange of promises that there be no uncured material failure by the other party to render any such performances due at an earlier time

WTF?!

Let's say that I have agreed to do something for you, and you have agreed to do something for me in return. If I have previously promised to do the same thing for you, and failed to do so, and I have not subsequently fixed my failure to do so, then you don't have to do the thing that you promised to do for me.

What it's saying is that your obligation to perform as promised is conditional on the other party's not having materially failed to perform (when she had promised to do so at an earlier time...in other words, on the other party's not having already breached the contract. She breaches the contract first, you're off the hook. That's how it reads to me. You really think that's not it?

Also, if there's substantial performance then there is no material breach, and vice versa. No?

If the performances to be exchanged under an exchange of promises can be apportioned into corresponding pairs of part performances so that the parts of each pair are properly regarded as agreed equivalents, a party's performance of his part of such a pair has the same effect on the other's duties to render performance of the agreed equivalent as it would have if only that pair of performances had been promised.

so this is saying that when there are corresponding pairs of part performance, performing one part of this exchange has the same effect on the other side's duty to render performance as it would be if that is the whole K

I think I'm just going to re-read the caselaw see if old Justice Cardozo can straighten this out for me.

But I do think you are right, PC, I think it is just saying that in a K where both sides promise to do something, one party's duty to perform is conditional on the other side NOT materially failing to do what they promised

performing one part of this exchange has the same effect on the other side's duty to render performance as it would be if that is the whole K

...it has the same effect on the other side's duty to render performance of the equivalent part. Only. So if a contract can be separated out into little sets of equivalent pairs, then they can kinda-sorta be treated like modules--like mini-contracts--with one side's previous performance being a condition of the other side's duty to perform only within the module. Right?

For express terms (terms written in the K and agreed to by the parties), substantial performance is NOT enough and ONLY substantially performing can constitute a breach...

no whether that breach relieves the other party of the duty to perform depends on whether the breach is material and total

That's why I said "material breach." Substantial performance is not a material breach. It's a breach, but not a material breach. An "uncured material failure by the other party" by definition involves performance short of substantial performance. Right?

You're wrong, kiddo. Substantial performance does not mean "most." Substantial performance is performance that does not meet the express conditions of the contract, but is so close that it would be unreasonable to deny payment. That's why it's called substantial performance.

Lindsey, your professor is out of his or her tiny little mind. No way is 3/4 of a bridge to Hawaii substantial performance. If the purpose of the contract is frustrated by the defects in the work, you don't have substantial performance. The purpose of the contract here is a usable bridge between Hawaii and the mainland. Three quarters of a bridge is unusable.

if ya promise to build a bridge and you only build 75% of it then you should only get paid 50% of the money due because it will cost at least twice as much to seek out a firm to complete the rest due to inflation.

A minor breach doesn't deny the obligor payment. When there is substantial performance, the other party is limited to collecting damages (the difference in value between what was promised and what was delivered) in court after the fact. Right?

"A minor breach doesn't deny the obligor payment. When there is substantial performance, the other party is limited to collecting damages (the difference in value between what was promised and what was delivered) in court after the fact. Right? "

...actually, in some cases pro rata payment may be acceptable for substantial performance. I'm not sure.

And the example of a house that is complete, but not up to code, is an interesting one. I think that whether the contractor has rendered substantial performance would depend upon how much of the substandard electrical (etc.) work could have been reasonably prevented, and also upon how much of it there is. Is the house riddled with code violations, or are there just a few? That's why we have judges and juries. If it were always cut and dried, we wouldn't need finders of fact.

All houses are money pits. That's why homeowners are advised to budget money every month to build a fund for the maintenance and repairs that are inevitable. The question here is which repairs are a natural and expected part of owning a house, and which could and should have been prevented by better workmanship by a contractor. That's where damages come in.

But I'm guessing that in general, if the house is delivered in such a condition that you can move into it, and it doesn't have an outrageous number of defects or code violations, the contractor has rendered at least substantial performance. There's a big difference between that and three quarters of a motherfucking bridge.

"There's a big difference between that and three quarters of a motherfucking bridge."

actually. lets say the 3/4 of the bridge is up to code and perfectly use-able up until it ends. then it would not be as substantial to hire another contractor to continue the building process.

however if a house is completed but not up to code it may be a complete loss depending on what exactly is not up to code. for example if the foundation is not built correctly then it would be un-repairable. thus you would be awarded repratory damages

that would fall under the consequential damages --- as a consequence of code violations you have to pay so much $$$ to get everything fixed

and I don't think he is misunderstanding, Pedantic Corruptor, he just simplifies...

what is the difference btw building the best bridge possible, but not putting that one last piece that finishes it, and finishing the bridge but it not being usable because the contractor used the wrong materials? either way it cann't be used, how is the former not substantial performance and the latter is?

the difference is that a bridge that is built up to code but i missing the last piece can be resumed by another contractor whereas a bridge that is not up to code at all - depending on how severe - may actually have to be torn down and rebuilt which would cost a shit ton more than just paying for the final piece.

If it can't be used, it's not substantial performance. Three quarters of a bridge is not substantial performance. An entire bridge made of marshmallows is not substantial performance. An entire usable bridge painted the wrong color is substantial performance. An entire usable bridge painted the right color but with minor defects that don't affect its structural integrity is substantial performance.

Substantial. Equivalent in substance, but not correct "to a T," as you put it.

and I don't think he is misunderstanding, Pedantic Corruptor, he just simplifies...

Misstatement is not simplification. If you hire me to build you a bridge to carry vehicular traffic to Hawaii and I build you three quarters of a bridge and then walk away, I have frustrated the purpose of our contract. What I've given you is not equivalent or near-equivalent in substance to what I promised to give you.

RB is right. I think what would happen in that case is that, depending on the materiality and the totality of the breach, the person paying for the bridge to be built would still have to pay for the portion of the bridge that WAS in fact built.....

that bridge shit happens all the time. a contractor (paid by the city) building a piece of infrastructure over a period of a year, runs out of money. it's not like no one got paid and it's not like the work didnt have value. consider a subway that goes way over budget. the city then ends up paying more money to complete the project using what was already built and then completing it by either hiring another ocntractor (not likely) or bilking the taxpayers for more money (likely) to finish the project.

If there's a delay and the contractor is making a good faith effort to complete the work, sure. But building three quarters of a bridge and then walking away is not substantial performance, regardless of whether the breach is material and total.

Delays and cost overruns are usually addressed in the contract. So when la dude gives me the example of a house without a roof, it's reasonable to assume that she means the contractor essentially said "voila, there's your house."

A brick manufacturer contracted with a builder to deliver 1000 bricks per week for 5 weeks, at a price of $500 per shipment. After the first shipment was made and accepted, the brick manufacturer called the builder and explained that he was retiring and would not be able to finish out the contract. Builder said, ďBut I need those shipments on time to complete the house Iím building. If you donít continue to ship me bricks as you promised to do, I will not pay you for the first shipment, even though there was nothing wrong with that one.Ē The manufacturer then sued the builder for $500. Does he win?

but what about if the service or delivered goods are unique to that one contractor? what is the shipment is a certain type of adobe brick for which the contractor held an exclusive world rights patent?

If he was the ONLY one who could do it, then that makes it more of a material breach and although he would still have to be paid for the bricks delivered, he might have to pay consequential damages or expectation damages or both...so the services rendered would be subtracted from the damages he would have to pay

That was directed at your earlier post...the brick maker being entitled to his $500 less damages. I have a hard time believing that a court would force a retiring brick maker to stay in business and keep making bricks just to satisfy a contract--even a contract that he should have known better than to make.

I already got paid half and one of it is in writing and there is no specific definition of what they will get. AND I have no developer who can commit that I can sub contract to. is there a legal term for "you're fucked"?

Correct, but I still don't see how three quarters of a bridge or a roofless house can constitute substantial performance in any case. But never mind. You need to study; you don't need to argue with me. GTFO.

The Texas case talks about whether the doctrine of substantial performance excuses the contractor from complying with an express condition of the contract, namely submitting an all-bills-paid affadavit (whatever the fuck that is).

This is by far the best plain-English explanation that I have found of the paragraph that we were originally discussing. Check it out. And then GTFO.

(You'll also want to study Jacob & Youngs v. Kent, if you haven't already, to get an idea of the spirit of the doctrine of substantial performance...which is basically to prevent the unjust enrichment of building contractors' counterparties just because the contractors haven't performed right down to the last little minutia of the contract.)

THANKS PC!!!!!

Who needs lawyers when you have the interwebz?

basically 2 parties promise each other something. the performance of the second promise is conditioned on performance of the promise that is due first. The second promise is only relieved of a duty to perform if there is a material failure to perform the promise due first, and if that failure is not remedied.

OMFG

Call it a no-flake clause. If You contract with Somebody to, say, create a clothing line for the next three months, and after the second month the Somebody stops returning your calls or stops paying you or doesn't send in any more specs, Somebody won't have much luck in court if Somebody sues you for not finishing the job. With the exceptions as listed in Section 240, say for example Somebody saying Somebody will be in Mexico for a week during the second month, so You can't pretend you didn't know that.